Sunday, February 27, 2011

What's a Lawyer To Do?

Most decisions are left to the lawyers.

Oh, they're supposed to consult with the client on important stuff and take the clients' views into consideration. But there are very few things where the clients have final say. Here's the complete list for criminal cases.

What plea to enter.

Whether to testify.

Whether to waive a jury.

Whether to waive time? Whether to present an alibi? Which witnesses to call? What questions to ask them? Clients can make suggestions but the ultimate decisions belong to the lawyers. (Lots of courts won't allow a time waiver without a client's explicit approval, but there's case law making clear that the lawyer has the authority to waive time even over the client's objection.)

Rule 1.2: Scope of Representation and Allocation of Authority between Client and Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Ohio's Rule (see here) is identical in substance, though slightly different in organization.

Most of the time, these principles don't present a problem.

Client typically wants to go home rather than jail or prison, and if not that, then to serve as little time as possible. Lawyer wants to try and make that happen.

Client and lawyer agree, after discussion at least, about whether client should testify.

Client and lawyer agree, after discussion, about whether client should change the plea to guilty or no contest or should, instead, go to trial.

Client and lawyer agree, after discussion, about whether to waive a jury.

Client and lawyer have no real disagreement about substantive tactics.

That's not to say there isn't buyer's remorse about those decisions after the jury says guilty or the judge pronounces sentence or after some years in the custody of state corrections officials, but that's not a problem with who decides what or how, it's a problem with unsatisfying outcomes.
But if the rules don't present a problem most of the time, they absolutely do some of the time.
There are those clients who, for whatever reasons, just want to plead guilty. Do the time. Maybe their guilt is overwhelming. Maybe they find living in prison with imposed rules and constant restriction easier than living on the outside. Maybe they're nuts (which is a separate problem). And there are the clients who will not follow the lawyer's advice no matter what.

I'm going to testify. I don't care about all the bad shit that will come in. Once I tell my story, the jury will have to find me not guilty.

I'm going to trial. I know you keep telling me that I'll be found guilty, but god assures me the jury will understand the truty.

I can't admit to raping that little child, no matter what.

Sure you say I'll probably win at trial, and if I don't that the judge will probably only give me 2 or 3 years, and I know I'm innocent, but I can't do 10 years and the prosecutor's offering me 4, so I'm taking it.

Those things happen. We may argue, wheedle, bring in family or another lawyer to help convince the client we're right (or do none of those things), but we know that the client decides and really, we go home at the end of the day. We've done our best to help the client make the smart choice. That's really all we can do. We hate it. But we go on.
Except sometimes.
Because sometimes we find ourselves representing people who want what we abhor.
I'm not talking about representing racists or pedophiles or nazis or communists or terrorists or drunk drivers or whatever most turns your stomach or strikes terror in your soul. We can represent them without advocating their principles. (Notice Model Rule 1.2(b), above.)
No, I'm talking about the folks who choose as the goal of their legal representation what we hate. I'm talking about, most recently, this guy.

His name is Denny Obermiller, and if you can believe the evidence (which he insisted his lawyers not challenge), he killed his grandparents and then raped his grandmother's body. (Or maybe he raped her before he killed her; the news stories, and maybe the evidence, are vague on the order of events.) He was arrested and apparently confessed. Facing capital charges in Cuyahoga County (Cleveland), he appeared before a three-judge panel in January, to fire his appointed lawyers, plead guilty, and ask to be executed according to Leila Atassi of the Plain Dealer.

But Judges Shirley Strickland Saffold, Timothy McGinty and John Sutula spent about a half-hour peppering Obermiller with questions, trying to determine whether he understood the gravity of his decision and if he was qualified to handle his own case.
And eventually, Obermiller buckled and withdrew his request to represent himself.
"Even if you keep these people here, they still only do what I tell them to do," Obermiller argued. "So I don't understand the point of all these questions. As a matter of fact, at this point they can stay. I really don't care."

The next day, he entered the plea.
Atassi had the follow-up on Friday.

Either desperate to avoid a lifetime behind bars or fraught with guilt for strangling his grandparents and raping his grandmother -- Denny Obermiller welcomed a death sentence.
A panel of three Cuyahoga County Common Pleas Judges granted his wish Friday, sentencing Obermiller, 29, to die by lethal injection.
Obermiller stared vacantly, as the judges' delivered their decision. His former girlfriend, Gina Mikluscak, blotted tears from her cheeks and wept silently in the back of the courtroom.
Obermiller, who earlier in his trial had tried to hasten his fate by pleading guilty, indicated that he would not seek an appeal.
The surly defendant, having recently lashed out at Judges Shirley Strickland Saffold, John Sutula and Timothy McGinty -- calling them idiots for asking repetitive questions and prolonging the inevitable -- took one last jab at the bench before his case concluded.
He was annoyed by the formality of having to sign a paper acknowledging that he understood his responsibility to report as a sex offender should he ever be released from prison even though he had already been sentenced to death. Obermiller refused to sign.
The judges then asked his attorneys Kevin Spellacy and James McDonnell to indicate their client's refusal on the form and sign it themselves. But they also declined to sign the sheet, and after several minutes of discussion between the judges and attorneys, Obermiller finally relented.
Beside his signature, however, he added, "Go (expletive) yourselfs." (sic)

Actually, that "would not seek an appeal" thing isn't in the cards. We've been down this road before in Ohio. (Obermiller isn't our first volunteer.) And the Ohio Supremes have made absolutely clear that every death sentence will be reviewed by them. Obermiller can try to ensure that no issues except those regarding his sentence are raised on appeal, but he can't avoid an appeal altogether.
Obermiller's story is the occasion for my writing this, but as I said, he's not the first. There are a whole lot of what get called "volunteers" out there: Men who choose not to fight the charges or not to fight the death penalty or not to fight the killing itself.
Gary Gilmore set the table for the rest. Herman Ashworth provided the occasion for the Ohio Supreme Court to establish some rules.

Gary Gilmore

Herman Ashworth

And of course, there are all sorts of reasons. For some, it probably is the sort of reasoned (if not reasonable) response Atassi offered as possible motives for Obermiller. Either he didn't want to spend decades in prison or he was so racked with guilt that he thought death what he deserved. Or maybe he's just still trying to jerk the system around. Or maybe he's just crazy. Or suicidal. (He wouldn't be the first person to commit a murder in the hope of getting executed because he wanted to kill himself but didn't have the gumption.) Or, who the hell knows.
We don't know, of course. We can't.
New ones keep coming, and every one, whether not wanting to fight at trial or at sentencing or on appeal or in the last days, every one has lawyers scrambling to figure out what to do. And to live with their choices.
What do we do with these guys? What do the lawyers do? How do you represent someone whose goal for the representation is for you to assist the state in getting him killed? Just what is your professional obligation? Your personal one?

Today's was the last column from Randy Cohen, The Ethicist, in the New York Times Magazine, so we can't ask him for advice. And this seems beyond Dear Abby's comfort level.
And while we can listen to what the courts say, and while we can maybe call up local ethics counsel, and while we can certainly refuse an appointment or seek permission to withdraw, none of that really responds to the deep and deeply personal issues. What do I do when my client's goal is to lose the case? What do I do when my client's demand is that I help the state kill him?
Maybe the client is legally competent and sane, even, as they say in some contexts, of sound mind. These still aren't assisted suicides in the Kevorkian sense. And no matter what the courts say or even the psychologists, they aren't ever freely chosen suicides.
And yet.
I've long since staked out the position that the interests of the client come first. And I believe that. And I believe that ultimately the client must determine his or her interests.
And yet.
For this one I offer no proscription. I have no guidance.
It's personal how we deal with it, what we do. And probably it's case by case.
And OK, there's this.
When you're client, for whom you are sworn to advocate, tells you to help him get murdered, when that happens, there is no rule.
Fuck Rule 1.2
And pass the bottle.

1 comment:

Your client is intent on committing a variation of 'suicide by cop'. Being ignorant of legal procedures, I suppose you could tell the judge as much and check the response against your own ethics. Me, I'd ask to be excused based on the fact that I refuse to help someone commit suicide.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.